We recently referred you to an American Bar Association Journal article in which Lawrence Taylor was interviewed about the difficulties of correlating traces of marijuana in the blood and intoxication. We also mentioned the use of zero-tolerance laws for marijuana by some states as a way to address issue. It seems that one California assemblyman looks to include California in that list of zero-tolerance states.

Currently, for a person to be convicted of a California marijuana DUI, it must be proven that they were “under the influence.” A person is under the influence when his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

Assemblyman Jim Frazier recently introduced AB 2500. The bill, if passed, would change California’s current DUI law making it unlawful for a person to drive with any detectable amount of marijuana in the system. The law also seeks to make it illegal to drive with any trace of any other controlled substance in the system.

The proposed language of the law would read:

“It is unlawful for a person to drive a vehicle if his or her blood contains any detectable amount of delta-9-tetrahydrocannabinol of marijuana or any other drug classified in Schedule I, II, III, or IV under the California Uniform Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).”

The legislature rejected a similar bill introduced last year by Senator Lou Correa. Rightly so. Let’s hope they do the same to AB 2500.

Delta-9-tetrahydrocannabinol (THC) can remain in a person’s blood for up to weeks and longer after marijuana use, and well beyond the point at which a person cannot safely operate a vehicle. That doesn’t matter to those who support the proposed law. It seems they would be okay with punishing perfectly sober drivers simply because they ingested marijuana at some point in the last several weeks.

A typical example concerns a DUI murder case in Orange County, California, reported in an Associated Press news story entitled "Murder Charges Increasing in Fatal DUI Cases" (article offline). In the trial, the defendant was only charged with murder, not with manslaughter. After extensive deliberations, the jury returned a verdict of guilty.

During the trial, I granted two interviews with the reporter. As so often happens, however, the reporter did not understand the law and I was misquoted. The two points I was trying to make to the reporter in objecting to a murder charge rather than one for manslaughter are important to understand:

Murder vs Manslaughter and the Concept of "Malice"

The legislature of California passed a law specifically for the situation where a death results from drunk driving: vehicular manslaughter. It is a "general intent" crime, that is, the driver does not have to intend to kill the victim to be guilty of manslaughter.

They also passed a law for murder: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought". The statute made the killing first degree murder if it was premeditated, and added that "All other kinds of murder are of the second degree". Thus, an intentional killing without premeditation is second degree murder….as is any killing that is done with "malice"

So….What is "malice"? Much like the legal definition of "obscenity", no one seems to know. The California statutes fumble with the definition, settling on: "…when the circumstances attending the killing show an abandoned and malignant heart". Ok, but how do you define an "abandoned heart"? How do you prove or disprove a "malignant heart"? What is a jury supposed to do?

A few years ago, a clever prosecutor in California charged a defendant in a DUI fatality case with murder rather than manslaughter. He believed that he could get a jury to buy the idea that driving under the influence of alcohol (or driving over .08%) satisfied the vague concept of "malice". He was right, and the practice began to spread. This was accelerated by the California Supreme Court's decision in People v Watson, where the Court said that a drunk driver could have the required "malice"…whatever that is.

Since then, there have been a number of appellate decisions trying to establish what is required to prove malice in a DUI case. The result: it is malice if the driver knew that drunk driving could be dangerous.

Duh…Don't we all know that?

Clearly, these are vague terms which can mean what you choose them to mean. As the Mad Hatter said to Alice in Through the Looking Glass:

“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

The simple fact is that there is a very clear and concise statute which was intended for drunk driving causing death: manslaughter. There is no mention of DUI in the murder statute, nor was it ever intended for that situation.

Prosecutorial Tactics in Bypassing the Manslaughter Law

The prosecutor in the Orange County case used an increasingly common but clever tactic: don't charge the defendant with murder and manslaughter — just with murder. If both are charged, the jury is likely to understand that (1) the manslaughter statute is clear and fits the facts, and (2) "malice" is too vague to send a man to prison for life.

But isn't that a big gamble by the prosecutor? If the jury doesn't buy the murder theory, the defendant goes free.

Exactly! And the prosecutor know this: he is putting the jury in the position of either convicting the defendant of murder…or letting him walk out of court unpunished for a deadly crime. He knows the jury does not want to let a drunk driver who killed a man get away with it, even if they may be uneasy with "malice". And they are never told that there is a manslaughter law intended for this kind of case.

Many years ago when I was a deputy district attorney in Los Angeles, there was a cynical saying in the office: "Anyone can convict a guilty man; it takes real skill to convict an innocent one"….